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TeLawgram

’21 Week 15 (11/04 – 16/04)

Greetings! This week, Telawgram brings to you discussions ranging from the Limitation Act to the NCLAT on the national front and updates from Hong Kong’s voting laws to indigenous land rights in Brazil on the international front and much more. Happy Reading!

Greetings! TeLawgram presents a roundup of the biggest legal updates of the past week, and reading material therein, for your perusal. Happy Reading!

India
International
CfPs and Seminars

India

The Supreme Court Stated That Balance Sheets Entries Can Amount To Acknowledgement Of Debt U/s 18 Limitation Act

The Supreme Court on 15th April, 2021 ruled that balance sheets can amount to acknowledgment of debt under Section 18 of the Limitation Act in the case of Asset Reconstruction Company (India) Limited v. Bishal Jaiswal. A 3 judge bench comprising Justices Rohinton Nariman, BR Gavai and Hrishikseh Roy overruled the NCLAT judgment in V Padmakumar v. Stressed Assets Stabilization Fund which ruled that the balance sheet could not be considered as an acknowledgment of debt under Section 18. 

As the Balance Sheet of the ‘Corporate Debtor’ amounts to acknowledgement under Section 18, it is to be held that no limitation would be applicable because every year, it is mandatory for the ‘Corporate Debtor’ to file a Balance Sheet. The bench referred to various decisions which have held that an entry made in the books of accounts, including the balance sheet, can amount to an acknowledgement of liability within the meaning of Section 18 of the Limitation Act, 

Suggested Readings:

  1. Click here to read the judgement.
  2. Click here to read the NCLAT judgement. 
  3. Mohak Thukral, NCLAT on Whether Entries in Balance Sheet are an Acknowledgment of Debt, (Feb. 07, 2021), https://indiacorplaw.in/2021/02/nclat-on-whether-entries-in-balance-sheet-are-an-acknowledgment-of-debt.html.
  4. Monika Saxena &Anant Pratap Singh Rathore, Acknowledgement of Debt in Balance Sheet: Confusion Amongst Company Law Tribunals, (Aug. 02, 2020), https://lawschoolpolicyreview.com/2020/08/02/acknowledgement-of-debt-in-balance-sheet-confusion-amongst-company-law-tribunals/.
  5. Vishesh Jain & Sahiba Vyas, The Dilemma Of Acknowledgment Of Debt Through Balance Sheet: An Unending Saga, (Sep. 18, 2020), https://cbcl.nliu.ac.in/insolvency-law/the-dilemma-of-acknowledgment-of-debt-through-balance-sheet-an-unending-saga/.
  6. Varun Tandon, Reflection of Debt in a Balance Sheet: Acknowledgment or a Statutory Compliance?, (Aug. 02, 2020), https://tclf.in/2020/08/02/reflection-of-debt-in-a-balance-sheet-acknowledgment-or-a-statutory-compliance-2/. 
  7. Limitation of Actions. Acknowledgment. Balance Sheet Statement of Liabilities to ‘Sundry Creditors’ Held to Acknowledge Barred Debt, 63:2 Harvard Law Review 362-362 (1949). 

The Kerala High Court held that a child born out of a live-in-relationship will have to be treated as a child born to a married couple for the purpose of Juvenile Justice Act

In a decision of seminal significance, the Kerala High Court has held that a child born out a live-in relationship and acknowledged so by the mother of the child, would have to be treated as a child born to a married couple for the purposes of surrendering a child for adoption under Juvenile Justice (Care and Protection of Children) Act, 2015 [JJ Act]. 

The Court was hearing a petition filed by a husband-wife duo, who were in a live-in relationship, seeking to reclaim their child who had been surrendered for adoption by the mother alone at a time when the couple had drifted apart. The issue before the Court was to identify whether a couple in a live-in relationship could be equated to a married couple for the purpose of surrender.

The Court also brought to light the objective of the JJ Act which it said is restoration and protection of the child in need of care and protection. The first right of restoration was with biological parents, then adoptive parents, foster parents, guardians and finally, fit persons.

The Court stated that, “In a live-in relationship, a couple acknowledges the mutual rights and obligations. There is no difficulty in holding that a child born in a live-in relationship also has to be construed as a child born to a married couple.”

Suggested Readings:

  1. Click here to read the order. 
  2. Sarthak Wadhwa, The “Right” to be in a Live-In Relationship, (Oct. 30, 2020), https://lawschoolpolicyreview.com/2020/10/30/the-right-to-be-in-a-live-in-relationship/.
  3. Yuvraj Dilip Patil, Socio-Legal Perspective of Live-in-Relationship in India (2011). 
  4. Sonali Abhang, Judicial Approach to ‘Live- In-Relationship’ In India- Its Impact on Other Related Statutes, 19:12 IOSR-JHSS 28-38 (2014).
  5. Mandeep Kaur, LEGAL PERSPECTIVE ON LIVE IN RELATIONSHIP IN PRESENT SCENARIO, 6:1 IJRAR (2019).

SC takes prima facie view on NGT’s power to examine the validity of laws

On 13th April, 2021, a Supreme Court bench comprising Chief Justice SA Bobde, Justice AS Bopanna and Justice V Ramasubramaniam observed that the National Green Tribunal does not have the power to examine or decide on the vires of laws. This observation came while hearing an application challenging the Karnataka High Court’s decision to transfer a plea Section 40 of the Biodiversity Act to the Tribunal. 

Counsel appearing for the petitioners relied primarily on the Sterlite case to establish that it has been clarified that the “NGT cannot strike down laws”.

The Apex Court ordered a stay of the proceedings before the National Green Tribunal until further notice.

Suggested Readings:

  1. Click here to read the order.
  2. Gitanjali Nain Gill, Mapping the power struggles of the National Green Tribunal of India: The rise and fall?, 7 Asia Journal of Law and Society 85 (2020).
  3. Assessment of Statutory Frameworks of Tribunals in India, Law Commission of India 272nd Report (October 2017).
  4. Shalini Bhutani and Kanchi Kohli, India’s Biological Diversity Act – A study of legal cases, https://counterview1.files.wordpress.com/2016/12/bd-litigating-report-final-5-12-2016.pdf (last visited April 17, 2021).

Bombay High Court rules that stays on initiation of proceedings by the NCLAT are not binding on High Courts

A single judge bench of the Bombay High Court comprising Justice G S Patel in Bay Capital Advisors v. IL & FS Financial Services Ltd. and Ors. ruled that NCLAT orders barring parties from bringing suits does not apply to High Courts. Bay Capital Advisors filed a petition under Section 9 of the Arbitration and Conciliation Act seeking to restrain IL & FS from acting on certain notices.

However, the NCLAT had exercised its powers under Sections 241 and 242 of the Companies Act, 2013 to restrain parties from bringing suits against IL & FS in “public interest”. Therefore, IL & FS argued that the petition under Section 9 was not maintainable before the High Court. Bay Capital Advisors, on the other hand, argued that the NCLAT’s decision ex facie violates Section 41 of the Specific Relief Act, which prevents courts from granting injunctions that bar the initiation of proceedings and therefore, was rendered per incuriam.

The Court ruled that High Courts are not subject to the jurisdiction of the NCLAT and observed that the NCLAT had “done something it could not have possibly done” when passing the order. The Court stated that the provisions of the Arbitration and Conciliation Act were not subject to the provisions of the Companies Act; hence, the NCLAT cannot pass orders on petitions under the Arbitration and Conciliation Act.  

Suggested readings: 

  1. Click here to read the Bombay High Court’s judgement.
  2. Click here for TeLawgram’s previous update on oppression and mismanagement under Sections 241 and 242 of the Companies Act, 2013. 
  3. D.G. Valentine, The Meaning of “Per Incuriam”, 18 Modern Law Review 602 (1955).
  4. IRALR, The Concept of Per Incuriam (Oct. 9, 2020), https://www.iralr.in/post/the-concept-of-per-incuriam.

Supreme Court rules that payment of extortion money to terrorist organizations does not amount to “terror funding” 

A two-judge bench of the Supreme Court comprising Justice L Nageshwar and Justice S Ravidra Bhatt while granting bail to the accused in Sudesh Kedia v. Union of India, observed that the payment of extortion money does not amount to terror funding. The appellant was accused of several offences under the Indian Penal Code, the Unlawful Activities (Prevention) Act and the Arms Act. The appellant had met with the members of a terrorist organization and there was a sum of money which was seized from his place of residence.

The Special Court was convinced that the appellant had funded terrorism and the High Court refused to grant bail. The High Court, relying on the  National Investigation Agency v. Zahoor Ahmad Shah Watali case,  ruled that it had reasonable grounds to believe that the appellant was guilty. The Supreme Court however, ruled that there was no prima facie case against the accused since there was no evidence that the accused colluded with the terrorist organization. The Court stated that the meetings with its members were unavoidable since they were for extortion purposes, overruled the decision of the High Court and granted the accused bail. 

Suggested readings:

  1. Click here for the Supreme Court’s judgement.
  2. Simran Kaur, UAPA: The Predicaments of Interpreting a Manifestly Vaguely Worded Law (Feb. 22, 2020), https://nualslawjournal.com/2020/02/22/predicaments-of-interpreting-a-manifestly-vague-worded-law/. 
  3. Abhinav Gupta, Critical appraisal of Bail law under §43d(5) of the Unlawful Activities (Prevention) Act, 1967 (July 28, 2020), https://criminallawstudiesnluj.wordpress.com/2020/07/28/critical-appraisal-of-bail-law-under-%C2%A743d5-of-the-unlawful-activities-prevention-act-1967/. 
  4. Deeksha Balaji, Bail under the UAPA: A case for reconstruction (July  27, 2020), https://lawschoolpolicyreview.com/2020/07/27/bail-under-the-uapa-a-case-for-reconstruction/.  
  5. Mutlu Koseli et al., Use of kidnapping and extortion as a tool for financing terrorism: the case of the PKK, Behavioral Sciences of Terrorism and Political Aggression 1 (2020). 

International

China fines Alibaba $2.75 billion in nation’s largest antitrust penalty

China imposed a record 18 billion yuan ($2.75 billion) fine on the e-commerce giant Alibaba Group Holding Ltd on 9th April, 2021. An anti-monopoly probe found that it had abused its dominant market position for several years.

In November 2020, China had proposed sweeping antitrust regulations targeting its internet economy. In late December, China’s State Administration for Market Regulation (SAMR) launched an antitrust probe, weeks after the authorities called off the Initial Public Offering (IPO) of Ant Group, the financial affiliate of Alibaba.

The fine, which is approximately 4 percent of the company’s domestic revenue, comes after SAMR found that Alibaba had been “abusing market dominance” by preventing its merchants from using other online e-commerce platforms.

The practice, which the SAMR has previously declared as illegal, violates China’s anti-monopoly law by impeding the free circulation of goods and infringing on the business interests of merchants.

Although China’s anti-monopoly law provides 60 days for Alibaba to appeal SAMR’s administrative decision, the company released a letter accepting the fine. They promised to increase internal compliance measures to comply with the antitrust law in the future.

Suggested Readings:

  1. Eleanor M Fox, AN ANTI-MONOPOLY LAW FOR CHINA—SCALING THE WALLS OF GOVERNMENT RESTRAINTS , 75 Antitrust Law Journal 1, 173- 194 ( 2008).
  2. Ken Dai and Jet Deng, China: Big Data And Antitrust Risks In Close-Up: From The Perspective Of Real Cases (27 Nov, 2020), https://calawyers.org/publications/antitrust-unfair-competition-law/competition-fall-2020-vol-30-no-2-big-data-and-antitrust-risks-in-close-up-from-the-perspective-of-real-cases/ 
  3. Alexandr Svetlicinii , China to Discipline Online Platforms with Antitrust Enforcement?

(17 Feb, 2021), http://competitionlawblog.kluwercompetitionlaw.com/2021/02/17/china-to-discipline-online-platforms-with-antitrust-enforcement/. 

  1.  Song Ying , Yang Yuhui and Hannibal El-Mohtar, China: Hybrid Antitrust Law In China — Interactions Between Administrative Enforcement And Private Action ( July 7, 2020), https://www.chinalawvision.com/2020/07/competition-law-anti-monopoly-law/hybrid-antitrust-law-in-china-interactions-between-administrative-enforcement-and-private-action/.

Hong Kong executive proposes restrictive amendments to voting laws

Hong Kong leader Carrie Lam announced significant amendments to the voting laws on 13th April, 2021. The Improving Electoral System (Consolidated Amendments) Bill 2021 redraws constituency boundaries, creates more electoral districts, and criminalises calls for voters to leave ballots blank.

The proposals will be discussed in the Legislative Council. However, there is no opposition left in the Council after mass resignations last year in protest against the disqualification of some pro-democracy legislators.

In March, the changes were put forth by China to reduce the number of directly elected representatives in Hong Kong and increase the number of Beijing-approved officials in an expanded legislature. A new vetting committee will be set up to monitor candidates for public office and work with new national security authorities in Hong Kong to ensure that they are loyal to Beijing.

Critics fear voters would feel robbed of a choice if candidates are vetted for their loyalty to Beijing, while most opposition figures are either in jail or in exile.

Suggested Readings:

  1. Click here to find the bill.
  2. Human Rights Watch, Hong Kong Protests (2019), https://www.hrw.org/blog-feed/hong-kong-protests.
  3. Council on Foreign Relations, Hong Kong’s Freedoms: What China Promised and How It’s Cracking Down (Feb 17, 2021), https://www.cfr.org/backgrounder/hong-kong-freedoms-democracy-protests-china-crackdown.
  4. China approves radical Hong Kong political reforms (2021), https://www.rte.ie/news/world/2021/0330/1206907-china-hong-kong/.

European rights Court rules that Turkey violated journalist’s right to liberty and freedom of expression

On 13th April, 2021, the European Court of Human Rights (ECHR) ruled that the Turkish government had violated the freedom of speech and expression of eminent journalist Ahmet Altan under the European Convention on Human Rights.

Altan, founder of the Istanbul newspaper – Talaf, wrote multiple articles in 2016 criticising the Turkish Government, especially the President Recep Tayyip Erdoğan. He was charged with “disseminating subliminal messages to the public that were evocative of a coup” and also with being a member of the Fethullah Terrorist Organisation (FETO), which the Government held responsible for the attempted coup.

He was indicted in September 2016 and, in 2018, he was sentenced to life imprisonment by the 26th Assize Court under Article 309 of the Turkish Criminal Code. Upon re-examination by the Court of Cassation he was sentenced to 10 years 6 months on lesser charges.

The ECHR found in favor of Altan with respect to violations of the right to liberty and security under Article 5 §1 for the lack of evidence forming a reasonable basis for suspicion; the right to have the lawfulness of detention decided speedily by a court under Article 5 §4 for restricting Altan’s access to the case file; and the right to liberty and security under Article 5 §5 as a consequence of violating the previous two provisions of the European Convention on Human Rights. The Court also found the government in violation of Article 10 which lays down the right to freedom of speech and expression, noting that “[his] detention had not been based on a reasonable suspicion that he had committed an offense, the interference with the right to freedom of expression could [also] not be justified in law.” The Court has ordered Turkey to pay Altan €16,000 (USD $19,000) in respect of non-pecuniary damage.

Suggested Readings:

  1. Click here to read the ruling.
  2. Click here to read the European Convention on Human Rights.
  3. Didem Tali in collaboration with Freedom House and Riwi, Perceptions Towards Freedom of Expression in Turkey, https://freedomhouse.org/sites/default/files/2020-07/Perceptions%20towards%20Freedom%20of%20Expression%20in%20Turkey%202020%20%281%29.pdf (last visited April 17, 2021).
  4. Marc Pierini, Individual Freedoms in Turkey, https://carnegieendowment.org/files/individual_freedoms_turkey.pdf (last visited April 17, 2021).
  5. Triestino Mariniello, Prolonged emergency and derogation of human rights: Why the European Court should raise its immunity system, 20 German Law Journal 46 (2019).

Brazil Supreme Court sides with Indigenous land rights in landmark decision

The Supreme Federal Court (STF) of Brazil, unanimously agreed to review the process around a past case that cancelled the demarcation of an Indigenous territory claimed by the Guarani Kaiowá people. The landmark decision could bolster Indigenous land rights in Brazil and serve as a setback to the Bolsonaro administration’s stonewalling of demarcations as a result of an appeal by the Guarani Kaiowá Indigenous people. The Gurani had fought for decades for rights to the Guyraroká land and suffered a setback in 2014 through a ruling that halted the territory’s demarcation process. The ruling does not mean that the demarcation of the Guyraroká land is allowed, but rather means that the dispute about the demarcation will start from scratch. 

The Guyraroká territory, in the Brazilian state of Mato Grosso do Sul, was recognized as an Indigenous territory in 2004 and the Brazilian federal agency tasked with protecting Indigenous interests, began the lengthy demarcation process in 2009. However, before the territory could gain full protected status under federal law, STF judges ruled that the Guarani Kaiowá had no legal claim to their ancestral territory because they were not living on it when the Brazilian constitution came into force in 1988. The community was denied opportunity to appeal several times before the case was closed in 2016. The present ruling however, reopened the case after the STF said the 2014 decision to throw out the demarcation process could be appealed and reviewed because the legal proceedings had lacked input from the Indigenous community.

Suggested Readings:

  1. Linda Rabben, Demarcation – And Then What? Brazil takes a step, but its commitment to protecting indigenous lands is not proven (Jun. 1993), https://www.culturalsurvival.org/publications/cultural-survival-quarterly/demarcation-and-then-what-brazil-takes-step-its-commitment. 
  2. Felipe Garcia, Brazil: Why land demarcation matters to indigenous people (Feb. 26, 2015), https://lab.org.uk/brazil-why-land-demarcation-matters-to-indigenous-people/. 
  3. Click here to find a technical report on the Demarcation And Registration Of Indigenous Lands In Brazil. 
  4. Click here to find more on the demarcation process.
  5. Leitao, Araujo, Nascimento & Ana Valeria, Indigenous Peoples in Brazil: The Guarani; a case for the UN (Mar. 1994), https://www.culturalsurvival.org/publications/cultural-survival-quarterly/indigenous-peoples-brazil-guarani-case-un. 
  6. Click here to find the UN Report on the State of World’s Indigenous People. 

Australia to end exemptions for politicians and judges facing sexual harassment claims

Australian Prime Minister Scott Morrison announced on 15th April, 2021 that Australia’s politicians and judges will no longer be exempt from sexual harassment laws. The decision comes as a result of the conservative government’s handling of a series of sexual abuse scandals. Australian public servants are presently exempt from complaints about workplace gender discrimination because of a legal loophole which means they are technically not the complainant’s employer. Australia witnessed nationwide protests against sexual violence, prompted by allegations of rapes committed by high level politicians, including allegations against attorney general Christian Porter. 

Australia’s Sex Discrimination Commissioner, Kate Jenkins, had issued the Respect@Work report providing 55 recommendations that would implement broad changes to existing laws, including the removal of exemptions for public sector employers. The Prime Minister said the government would adopt all 55 of the Commissioner’s recommendations which also include a blanket ban on workplace gender discrimination, mandatory training of company directors and reporting by listed companies, as well as improved coordination between complaint-handling agencies. Employers will also now be required to take a proactive approach to stop gender discrimination, while complainants will get a longer period of time to lodge their complaint.

Suggested Readings:

  1. Click here to find the Australian government’s report on ‘A Roadmap for Respect: Preventing & Addressing Sexual Harassment in Australian Workplaces’.
  2. Click here to find the report of Respect@Work.
  3. Law Council of Australia, National Action Plan to Reduce Sexual Harassment in the Australian Legal Profession (last visited: Apr. 16, 2021), https://www.lawcouncil.asn.au/publicassets/4c3d5a37-b744-eb11-9437-005056be13b5/National%20Action%20Plan%20to%20Reduce%20Sexual%20Harassment%20in%20the%20Australian%20Legal%20Profession_FINAL.pdf. 
  4. International Labour Organisation, Safe and healthy working environments free from violence and harassment (Last visited: Apr. 17, 2021), https://www.ilo.org/wcmsp5/groups/public/—ed_protect/—protrav/—safework/documents/publication/wcms_751832.pdf. 
  5. Click here to find the defamation suit against Australian Attorney-General and Minister for Industrial Relations, Christian Porter. 
  6. Women’s Health Victoria, Australian Human Rights Commission Inquiry into Sexual Harassment in Australian workplaces (Last visited: Apr. 16, 2021), https://www.cpaaustralia.com.au/-/media/corporate/allfiles/document/podcast/metoo-resources-2.pdf?la=en&rev=b060eee120924833b218f897590eba85. 

CfPs and Seminars

Call for Papers (India)

Call for Papers (International)

Seminars (India)

Seminars (International)

  • The Nova Centre on Business, Human Rights and the Environment (NOVA BHRE) is organizing, in partnership with the British Institute of International and Comparative Law, a webinar series to discuss key issues pertaining to Business, Human Rights and the Environment. As a part of this, a discussion on Corporate Due Diligence and the Green Dealis scheduled for 22nd April 2021. Register here. 

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